Citation Nr: 1334597 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-49 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether a timely substantive appeal on the issues of entitlement to service connection for a back disability, entitlement to service connection for tinnitus, entitlement to an initial compensable disability rating for bilateral hearing loss disability, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was filed following the issuance of a statement of the case (SOC) in October 2010. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss disability. 5. Entitlement to a TDIU due to service-connected disabilities. REPRESENTATION Appellant represented by: Brooks S. McDaniel WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1992 and from October 2004 to January 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 administrative decision and a December 2008 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. As will be discussed below, the Board has found that the Veteran submitted a timely substantive appeal following the issuance of the October 2010 SOC. As such, the issue of an earlier effective date for the grant of entitlement to service connection for posttraumatic stress disorder with depressive disorder has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for tinnitus, entitlement to an initial compensable rating for service-connected bilateral hearing loss disability, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. A December 2008 RO rating decision granted the Veteran entitlement to service connection for bilateral hearing loss disability and denied five other claims. The RO sent the Veteran notice of that decision on December 22, 2008, and apprised him of his appellate rights on an enclosed VA Form 4107. 2. In response, he filed a timely notice of disagreement (NOD) regarding the rating assigned for his bilateral hearing loss disability and the denial of the five other claims, and the RO resultantly sent him a statement of the case (SOC) concerning these six claims on October 26, 2009. 3. The Veteran filed a substantive appeal (VA Form 9) regarding these six claims, which he dated April 28, 2010, and was date stamped as received at the RO on April 29, 2010. The date of receipt of the substantive appeal was more than 60 days after the issuance of the SOC and more than one year after the December 22, 2008 notification of the rating decision. The Veteran acknowledged the substantive appeal was not timely during his February 2012 hearing before the Board, but he cited to extenuating or mitigating circumstance as reason or justification. 4. The Veteran has shown good cause for his failure to file a timely substantive appeal in his challenge to the December 2008 rating decision, in that he had substantial communication problems with his former representative, whom he had relied on to submit his substantive appeal, as such this directly resulted in his failure to timely file. 5. The Veteran's current back disability was not manifest in service; arthritis of the low back was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran's current back disability is related to his service, or to any event or injury therein. CONCLUSIONS OF LAW 1. With application of the doctrine of equitable tolling, the Veteran submitted a timely substantive appeal in response to the RO's December 2008 rating decision, which granted entitlement to service connection for bilateral hearing loss disability, and assigned a noncompensable rating and denied service connection for PTSD, depression, a back disability, tinnitus, and entitlement to a TDIU. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 3.109 , 20.200, 20.202, 20.300, 20.302, 20.303, 20.304, 20.305, 20.306 (2013). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Timeliness of Substantive Appeal As he admitted during his February 2012 hearing before the Board, the Veteran is not contending that he filed a timely substantive appeal, which, in this instance, needed to have been received within 60 days of the mailing of the SOC. But he offers explanation, essentially maintaining that the time limit for filing that substantive appeal should be equitably tolled as the delay in filing was caused by communication problems with his service representative. An appeal to the Board consists of a timely filed notice of disagreement NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal (e.g., a VA Form 9 or equivalent statement). See 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 C.F.R. § 20.202. As a general rule, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ, which, here, is the RO) mails the SOC to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later, to perfect an appeal of any claim adjudicated by the RO. See 38 U.S.C.A. § 7105(a), (b)(1);38 C.F.R. § 20.302. If an appeal is not perfected within the time specified, the RO's determination becomes final and binding on the Veteran based on the evidence then of record. See 38 U.S.C.A. § 7105(c) ; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103. And once an RO's decision becomes final and binding, absent submission of new and material evidence, the claim may not be reopened or readjudicated by VA. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. An extension of the 60-day period for filing a substantive appeal may be granted for good cause. A request for such an extension, however, must be made in writing and must be made prior to expiration of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. Except in cases where the submission of additional evidence requires the issuance of a supplemental SOC (SSOC) pursuant to 38 C.F.R. § 19.31, the filing of additional evidence after receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination. See 38 C.F.R. §§ 20.303(b), 20.304. The Court has held that the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of both an NOD and a formal appeal (VA Form or equivalent statement). When an appellant fails to file a timely appeal, and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, the Court has held that he is statutorily barred from appealing the decision of the AOJ. Roy v. Brown, 5 Vet. App. 554, 556 (1993). Under 38 U.S.C.A. § 7105(d)(3), questions as to timeliness or adequacy of response shall be determined by the Board. But in another precedent case, Percy v. Shinseki, 23 Vet. App. 37 (2009), the appeal similarly involved the question of whether the requirement that a claimant file a timely substantive appeal under 38 U.S.C.A. § 7105(d)(3) is a jurisdictional predicate to the Board's adjudication of a matter, particularly in light of the U. S. Supreme Court's decision in Bowles v. Russell, 551 U.S. 2005 (2007), which had held that jurisdictional time periods for taking an appeal may not be extended for equitable reasons (i.e., equitably tolled). In Bowles, and In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997), the Court had held that if the claims file does not contain a timely NOD, SOC, and VA Form 9 or equivalent [Substantive Appeal], the Board is not required and, in fact, has no authority to decide the claim. Indeed, the Court in Bowles had gone so far as to conclude that jurisdictional time periods for taking an appeal may not be extended even for equitable reasons, such as out of a sense of common fairness due to mitigating circumstances. But in distinguishing Bowles, the U. S. Court of Appeals for Veterans Claims (Court) held in Percy that section 7105(d)(3) does not operate as a mandatory jurisdictional bar precluding the Board's consideration of an appeal where the substantive appeal is untimely. The Court specifically noted that, while section 7105(d)(3) provides that the AOJ "may" close a case if a Substantive Appeal is not timely filed, such action is discretionary, not mandatory. Given the permissive nature of section 7105(d)(3), including express authority to grant indeterminate extensions of time, the Court held that VA may waive its objection to an untimely substantive appeal, and that the Board may properly adjudicate a matter where there has been such waiver because the 60-day filing period is not jurisdictional in nature. While the Board's regulations refer to the timely filing of a Substantive Appeal as constituting a jurisdictional question, the Court stated that it need not provide any deference to this interpretation given that the statute is clear on its face. Other cases similarly have held that a statutory filing period may be equitably tolled due to conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable tolling, as an example, is available where the claimant has actively pursued his judicial remedies but has filed a defective pleading during the statutory period, or where a claimant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Jaquay v. Principi, 304 F.3d 1276, 1282-83 ( Fed. Cir. 2002). The Federal Circuit Court specifically held in Bailey that equitable tolling in the paternalistic Veterans' benefits context does not require misconduct, such as trickery; however, Bailey does require the Appellant to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. Wes , 13 Vet. App. 525 (2000). There must be a cause and effect, i.e., the complainant relied to his/her detriment on something that VA did or should have but did not do. See Cintron v. West, 13 Vet. App. 251, 257 (1999), citing Bailey, 160 F.3d at 1364. Turning to the procedural history of this case; in a December 2008 rating decision, the RO denied 5 claims, and granted the Veteran entitlement to service connection for bilateral hearing loss disability. The RO provided the Veteran notice of that decision on December 22, 2008, as well as notice of his appellate rights. In response, the Veteran filed a timely NOD to initiate his appeal of the 5 issues that were denied by the RO, as well as the rating that was assigned for his service-connected bilateral hearing loss disability, the RO sent him an SOC on October 26, 2009. He then filed a substantive appeal (VA Form 9), which was dated April 28, 2010, and date stamped received April 29, 2010. The Veteran was required to submit his substantive appeal to the RO within the later of either 60 days after the issuance of the October 26, 2009 SOC (meaning by December 26, 2009) or within one year after receiving the notification December 22, 2008 notification of the rating decision (meaning after December 22, 2009). Hence, considering the later of th two, the deadline for perfecting his appeal was December 26, 2009. See 38 U.S.C.A. § 7105(a), (b)(1); 38 C.F.R. § 20.302. In this case, the Veteran clearly did not meet this filling deadline; however, he readily acknowledges as much according to his subsequent statements made at his February 2012 Board hearing. Therefore, resolution of this matter ultimately turns on whether any delay in receipt of his substantive appeal by the RO should be subject to equitable tolling. For there would be no reason to consider this doctrine of equitable tolling without acknowledging that the substantive appeal was in fact untimely, as equitable tolling is a means of excusing the filing delay on account of extenuating or mitigating circumstances, justified by a showing of good cause explaining why the appeal was not timely filed. Equitable tolling also is justified in "extraordinary circumstances." McCreary v. Nicholson, 19 Vet. App. 324 (2005). The following three requirements must be met, however: (1) the extraordinary circumstance must be beyond the appellant's control, (2) the appellant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the appellant must exercise "due diligence" in preserving his/her appellate rights such that a reasonably diligent appellant under the same circumstances also would not have filed a timely appeal. Id. In a May 2010 statement the Veteran explained that since filing his claim, he experienced difficulties getting in touch with his representative from Disabled American Veterans (DAV). Eventually he learned that his representative was no longer with DAV, and that his case had been assigned to another DAV representative, who he had no communication with. After learning that his claim had been denied in December 2008, the Veteran reported that he contacted his congressman and was referred to a new office to seek new representation; where he signed a new power of attorney with a Mr. M. and was told that his claim was in order and he should hear back within 6 months. The Veteran explained that after talking with Mr. M, he was hospitalized for symptoms related to his PTSD. While being hospitalized he received a letter informing him that his claim was no longer active, and as a result he had his wife contact a new representative in order to help resolve this issue. At his February 2012 Board hearing, the Veteran reiterated the fact that he had serious communication struggles with his former representation and was thus unable to submit a timely substantive appeal. It is therefore apparent from the record that, the Veteran had relied on his representative to file his substantive appeal, and as the evidence shows that his representative had filed his August 2008 claim and February 2008 NOD, his reliance on his representative for the filing of his substantive appeal does not appear to be misplaced. Using the McCreary standard for the application of equitable tolling, the Board therefore finds that his failure to timely file his substantive appeal was due to extraordinary circumstances beyond his control, namely, the failure of his duly appointed representative to effectively manage the Veteran's case; that the untimely filing was a direct result of these extraordinary circumstances; and that he exercised due diligence in preserving his appellate right in appointing a new representative, who filed a substantive appeal in April 2010, when he discovered a substantive appeal had never been filed by his former representative. Therefore, all the elements of the McCreary test have been met. The Board accordingly deems his substantive appeal timely filed. Having found that the Veteran's substantive appeal is timely, the Board will proceed with the remaining issues on appeal. Service Connection for a Back Disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran asserts that he is entitled to service connection for a back disability, as such was incurred in or caused by his active service. Specifically, at his February 2012 Board hearing, and in various lay statements, he has asserted that while taking part in jump training, he sustained multiple "hard landings" that resulted in a back injury, and that he has continued to suffer from back pain since that time. A review of the Veteran's service treatment records (STRs) show that in September 1983 the Veteran complained of back pain that had woke him up in the night. He denied any previous episodes and did not report any preceding event or injury as a cause for the pain. On examination, the Veteran's back was within normal limits, he had good range of motion, and his back was not tender. He was assessed with back pain and was given some back exercises to do. There is no evidence that he sought follow-up treatment for his back pain. On June 1992 separation examination, the Veteran's spine and other musculoskeletal features were found to be clinically normal; however, it was noted that the only change in his health since his last physical examination was that he was suffering from back pain and hearing loss. There was no explanation as to the cause or location of the back pain. Of record is an October 2009 memorandum to the file, which indicates that the Veteran's complete STRs from his second period of active service are not available for review. However, April 2005 and November 2005 STRs show that the Veteran was seen for complaints unrelated to his low back disability. These records show that a low back condition was not noted as among the Veteran's "active problems" at those times. The Board notes that at his February 2012 Board hearing the Veteran specifically reported that he injured his back during his first period of active service, and not during his second. VA treatment records of record show the Veteran began receiving treatment at the VAMC for complaints of chronic sciatica and low back pain in June 2008, which he attributed to parachute jumps during active service. Importantly, at that time he reported that his symptoms had begun approximately 5 years earlier, and that they had progressively gotten worse. He also reported that he had seen a chiropractor for two weeks, but was unable to continue seeing her. The Veteran was afforded a lumbar X-ray in June 2008, which showed grade II spondylolisthesis at L5 with degenerative joint disease (DJD). A September 2008 VA treatment records shows that the Veteran was seen for lumbar magnetic resonance imaging scan (MRI), which revealed bilateral L5/S1 spondylolysis with grade I anterior listhesis L5 on S1 and mild to moderate right and moderate left foraminal narrowing. The remainder of the VA treatment notes of record shows that the Veteran continued to receive treatment, including physical therapy, for his back disability. However, there is no etiology opinion provided by any of the Veteran's treatment providers. The Veteran was afforded a VA examination in October 2008. At that time he reported that while in Airborne training he fell from a swing ladder and landed on his back. He reported that he did not seek medical care because he did not want to be forced to stop his training. He also reported that after returning to Fort Bragg, he hurt his back on two more jumps and sought medical care, at which time he was given a book of low back exercises, but that he continued to have pain, which he treated with Aleve and aspirin. He reported that his pain had increased in the last three years. After examination, the Veteran was given a diagnosis of grade I-II spondylolisthesis at L5, with DJD. The examiner did not provide an opinion as to etiology. The Veteran was afforded another VA examination in August 2009. At that time, the Veteran reported that he hurt his back after landing hard on his back during several parachute jumps, and he also reported that he hurt his back during basic training. After examination and review of the claims file, the examiner assigned the Veteran a diagnosis of grade I anterior listhesis L5 on S1, bilateral L5/S1 spondylolysis, and mild to moderate right and moderate left DJD. The examiner also noted right side sciatica with decreased light touch and pain. The examiner opined that it was less likely than not that the Veteran's low back disability was related to his active service. He explained, that although the Veteran had reported back injuries in active service, a review of his STRs indicates that they must not have been overly severe, as the only notation of back problems was a June 1992 separation examination when the Veteran noted back pain. However, the June 1992 examination was negative for back problems. Additionally, the examiner noted that there was no continuity of care for a low back problem since the Veteran separation from active service. Therefore, the examiner opined that there was no relationship between his current low back disability and any complaint of low back pain during active service. Upon review of the evidence, the Board finds that service connection for the Veteran's back disability, to include DJD, is not warranted. In this regard, while the Veteran has reported that he sustained multiple injuries to his back during active service and that he sought treatment at Fort Bragg, this is not reflected in his STRs. The Board notes that a review of the Veteran's STRs notes one complaint of back pain in September 1983 and that he reported back pain at the time of his June 1992 separation examination; however, on examination, his spine and musculoskeletal system was normal. Further, there is no evidence that the Veteran sought postservice treatment for low back pain until June 2008 (although he did report a two week period of treatment with a chiropractor prior to his VA treatment), when he reported that his symptoms began five years earlier (2003). In this regard, as noted above, the Veteran served on active duty from August 1981 to August 1992 and from October 2004 to January 2006. Further, the Board notes that at his February 2012 Board hearing the Veteran specifically reported that he injured his back during his first period of active service, and not during his second. Therefore, the Veteran's statements indicated no problems associated with his back injury during service from 1992 until 2003, more than 10 years. Simply stated, while the Board is keenly aware of the fact that Airborne training can damage a back, the Veteran himself has provide highly probative evidence against his own claim, clearly indicating he did not have back symptoms until years after the back injury and this training, which only supports the view of the VA medical opinion. The record also indicates that the June 2008 VA treatment note is the first evidence that the Veteran was diagnosed with DJD. As there is no evidence that the Veteran sought follow-up treatment after the episode of back pain in September 1983, or that he sought treatment for 10 years following his report of back pain in 1992, and he has specifically reported that he did not sustain any back injuries during his second period of active service, the Board can conclude that the episode of back pain for which he received treatment in September 1983, and the report of back pain in June 1992, were acute and transitory, and resolved. This finding is fully supported by the VA medical opinion. Accordingly, service connection for a back disability, to include DJD, on the basis that such disability became manifest in service, and persisted, is not warranted. As there is no X-ray evidence that the Veteran was diagnosed with arthritis of the low back in the first postservice year, there is also no basis for considering (and applying) the 38 U.S.C.A. § 1112 chronic disease presumptions. 38 C.F.R. § 3.309(a). What remains for consideration is whether the Veteran's current back disability is otherwise related to the Veteran's active service. The only competent (medical) evidence of record that addresses the matter of a nexus between the Veteran's current back disability and his active service is the report of the August 2009 VA examiner, who opined that the Veteran's low back disability was less likely than not related to his active service. As the examiner (a trained medical professional) expressed familiarity with the record, and provide an explanation of rationale for his opinion (observing that although the Veteran reported back pain in June 1992, clinical examination was normal at that time, and there were no other complaints of back pain during active service; nor was there any evidence of continuity of care following separation from active service), his opinion is probative in this matter. Because there is no competent medical evidence to the contrary, and this opinion provides sounds reasons and bases for the opinion, the opinion is persuasive. The Board acknowledges the Veteran's assertions that his back disability was caused by or is related to his active service. However, while the Veteran may sincerely believe that his back disability is etiologically related to his active service, his statements are not supported by the medical evidence or record. Additionally, as he is a layperson without the specialized training necessary to address a complex question with respect to the etiology of his low back disability, and he does not cite to any supporting medical texts or treatises, he is not competent to provide a nexus opinion. See Jandreau, 492 F.3d 1372, 1374, 1377. In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's low back disability is related to his active service. Accordingly, the benefit of the doubt rule does not apply, and the appeal must be denied. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in July 2008, August 2008, September 2008, October 2008, and October 2010 that fully addressed all notice elements. The July 2008, August 2008, September 2008, and October 2008 letters were sent prior to the initial RO decision in this matter. Furthermore, this letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and pertinent postservice treatment records. The Board notes that the Veteran's complete STRs from his second period of active service are not available for review. Therefore, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate source medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). In this regard, the Board notes that the RO notified the Veteran by letter in September 2009 that his complete STRs from his second period of active service were unavailable. He was provided an opportunity to submit copies of any STRs he might have in his possession or copies of alternative sources of evidence; he did not respond. Further, the Board notes that the Veteran was afforded VA medical examinations in October 2008 and August 2009. The August 2009 VA examination was conducted in conjunction with a review of the Veteran's claims file and the examiner provided an explanation of rationale for his opinion, and the Board therefore finds it adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The Board having determined the Veteran perfected a timely appeal of the RO's December 2008 rating decision granting entitlement to service connection for bilateral hearing loss, assigning a noncompensable rating, and denying entitlement to service connection for PTSD, depression, a low back disability, tinnitus, and entitlement to a TDIU, to the extent these claims have not yet been granted by the RO, specifically the Veteran's claims listed in the issue section above, they are reinstated. So to this extent, and to this extent only, this appeal is granted. Entitlement to service connection for a back disability is denied. REMAND The Board finds that additional development is required before the Veteran's remaining claims on appeal are decide. At the outset, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Court further noted that the VA examiner is not required to read the Veteran's mind. Id, citing Cintron v. West, 13 Vet. App. 251, 259 (1999). Therefore, this information can be elicited by the examiner from the Veteran. The Board notes that the Veteran was afforded VA audiological evaluations in October 2008 and November 2010. However, upon review of these examination reports, the only notation of the functional effect of the Veteran's hearing loss was that he had "trouble understanding speech." However, upon review of the record, there are statements from the Veteran and his spouse which indicate he suffers from more severe affects. Specifically in a March 2009 statement, the Veteran indicated that his hearing loss has affected his relationships with other people in that he always talks loud, which makes people think that he is upset or has resulted in him being asked to leave places from time to time. As neither the October 2008 nor the November 2010, fully elicited from the Veteran the functional impairment caused by his bilateral hearing loss during the VA audiological evaluations, the Board finds that the Veteran should be afforded a new VA audiological evaluation in order to determine the current level of severity of all impairment resulting from his service-connected bilateral hearing loss disability in compliance with the holdings in Martinak and Cintron, supra. Additionally, the Veteran has claimed entitlement to service connection for tinnitus. Both of the October 2008 and November 2010 VA audiological evaluation reports note that the Veteran was not claiming entitlement to service connection for tinnitus, and as such, there are no findings or opinions made regarding tinnitus. At his February 2012 Board hearing, the Veteran reported that he was experiencing tinnitus at that time; however, there is no evidence currently of record indicating that the Veteran has stated that his tinnitus began during his active service. As such, the Board finds that the new VA audiological evaluation should include appropriate questions in order to determine the etiology of the Veteran's current tinnitus. With regard to the Veteran's claim of entitlement to a TDIU, the Board notes that the Veteran does not currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a); however, because the Veteran's claim for TDIU is inextricably intertwined with his claims of entitlement to service connection for tinnitus loss and entitlement to an initial compensable rating for bilateral hearing loss disability, it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Further, the Board notes that the most recent VA treatment records associated with the claims file are from the Salem, Virginia VAMC dated August 2009. Additionally, the Veteran has reported that he is unable to work as a result of his service-connected disabilities. During his February 2012 Board hearing, he indicated that he had received inpatient psychiatric treatment on numerous occasions in the past year. As recent VA treatment records and any private treatment records, including psychiatric records, may contain information pertinent to the Veteran's claim of entitlement to a TDIU, efforts must be made to obtain them and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain treatment records from the Salem, Virginia VA medical Center, dated from August 2009 to the present. 2. The RO should ask the Veteran to identify all providers of evaluation or treatment he has received for his claimed disabilities, as well as his service-connected PTSD, and to provide releases for VA to obtain records of any such identified evaluations and treatment. The RO should attempt to secure for the record copies of the complete clinical records from all providers identified. If any identified private provider does not respond to the RO's request for records, the Veteran must be so advised, and reminded that ultimately it is his responsibility to ensure that private medical records are received. 3. Then, the Veteran should be afforded a VA audiological evaluation to determine the current severity of his service-connected bilateral hearing loss disability, as well as the etiology of his currently present tinnitus. The examiner should note any impairment caused by the Veteran's bilateral hearing loss disability, including a full description of the effects of his disability upon his ordinary activities, if any. The claims files must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. After examination and review of the claims file, the examiner should opine, whether it is at least as likely as not (a 50 percent or better probability) as to whether the Veteran's current tinnitus had its onset during his active service. The complete rationale for all opinions expressed must be provided. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the remaining claims on appeal. If the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), consideration should be given to whether referral for extraschedular consideration is warranted. If any benefit sought remains denied, furnish the Veteran and his attorney with a supplemental statement of the case and afford them an appropriate opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs